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Escape from the
red states

Escape from the
red states


Gay parents can wake up to find that their home state wants to break up their family. Some fight back; others simply leave for friendlier locales

Boxes are stacked in the garage, the walls are barren, and an air mattress on the den floor serves as bed for the night in the Orlando, Fla., home of Janine Kirchgassner, 45, and Julia Robertson, 43, and their children, Jessica, 6, and Matthew, 4. It's their last day living here, and the moms look tired. They have a right to--it's their second move in three years.

Determined to keep hopping state to state until they find "home," a place where they feel secure and valued as a family, they have jumped from Texas to Florida and now from Florida to Vermont. They hope this is the last time. "We thought things would be better moving to a bigger city," says Kirchgassner of their move in 2002 from rural Texas to Orlando, a city of about 200,000. "You know--more metropolitan, more liberal. Well, the laws stink here even more."

Kirchgassner and Robertson are among the millions of gay Americans with children who face uncertainty fueled by a sea of ever-changing state laws and statutes that affect everything from who is a legal parent to who may have what when a loved one dies. For families headed by gay and lesbian couples, an out-of-state move means considering things even more basic: Can I become a parent? Can I take time off work if my mate or child is gravely ill? Will I be able to inherit the home I live in and assets built over my lifetime and pass them along to my children?

Laws vary so widely from state to state on some issues that a person who is in many ways secure in one state can cross into a bordering state and be in hostile territory. For example, Maryland and Virginia, two Beltway states that many Washington, D.C., commuters opt to live in, couldn't be more different for a gay family.

Legal differences among states can have shocking fallout: Washington State couple Ed Swaya, 44, and Gregory Hampel, 36, knew their baby would be born in Oklahoma. They found out at the 23rd week of pregnancy when the baby's birth mother was due and immediately began readying for the adoption of their baby girl, Vivian. When she was born three years ago, hospital staff in the rural Oklahoma hospital shocked them with treatment fit for kings. "People went out of their way to make sure it was a positive experience for us," Swaya says.

What they weren't prepared for was Oklahoma's refusal to amend the birth certificate to show both men as Vivian's fathers, even though the state of Washington had already approved adoption paperwork. Shortly after legal wrangling that resulted in the state caving in on Vivian's case, the Oklahoma legislature quickly passed a law that would disallow same-sex couples from being adoptive parents--even if they come from another state where they are legally recognized.

"What they were doing did nothing to stop the fact that Gregory and I were [Vivian's] legal parents," Swaya says. "All it did was give her an inaccurate birth certificate." Gay rights group Lambda Legal is now challenging the new law in court, with Swaya and Hampel among the plaintiffs.

Oklahoma isn't unique. Gay parents moving between states are well-served not only to do thorough research but also to hire early on an attorney well-versed in local legal issues.

The District of Columbia and eight states--Connecticut, California, Illinois, Massachusetts, New Jersey, New York, Pennsylvania, Vermont--allow same-sex couples to complete a second-parent adoption, which makes a same-sex partner a child's legal parent without affecting the other partner's parental status. Certain counties in 15 other states have allowed such adoptions.

"This patchwork means your rights as a parent fluctuate based on geography," says Carrie Evans, state legislative director for gay rights group the Human Rights Campaign. "Most gay parents probably have no idea when they move that they can change the legal status of their family."

Kirchgassner and Robertson admit they didn't conduct enough research before moving from east Texas to Florida--a state with the nation's most stringent ban on adoptions by gays and lesbians. The couple had become parents while living in Texarkana, Texas, population 35,000 and the birthplace of Ross Perot. After a five-year journey involving fertility clinics, sperm donors, and medical problems, Jessica was born; two years later came Matthew.

While Robertson carried the children, Kirchgassner was the stay-at-home mother. But Robertson's employer, International Paper, the world's largest forest products company with 83,000 employees, did not offer domestic-partner benefits to her in Texas.

When Kirchgassner became ill and required three surgeries, Robertson was unable to take family leave to care for her or the children as a married couple could. Under Texas law Kirchgassner was no more the children's legal parent--or Robertson's spouse--than the next-door neighbor.

"It was a total freak-out of mine that I had no legal rights," Kirchgassner says. "I realized our life just sucks when you can't take time off to take care of your family when they need you."

They picked Orlando since they already had family there. When Kirchgassner took a job in Florida with Verizon Communications, a 210,000-employee telecom giant, she also got domestic-partner benefits. This time around Robertson would stay home with the kids while Kirchgassner worked.

They were in disbelief to find out later that Robertson could have insurance as Kirchgassner's domestic partner but the children could not be covered since the insurance did not extend to children of domestic partners. Many gay parents don't think to ask such specific questions when they are interviewing for a job, or they assume domestic-partner benefits will mean the whole family can get coverage.

Kirchgassner learned from the experience and immediately began looking for a job that would offer benefits for the entire family. When Lockheed Martin, a major defense contractor with 130,000 employees, offered her a job with such benefits and she accepted, they were thrilled.

Then, three months later, devastation: Hourly employees didn't have domestic-partner benefits at all, only salaried workers. Kirchgassner's hourly status meant the family was now even worse off.

A change in company policy this year to extend the benefits to hourly employees came too late. Finally fed up, they sold their home and decided to move to Vermont in May. They believe being a family in Vermont will be vastly different than being a family in Florida.

In Vermont, Kirchgassner can be a legal mother. After registering in a civil union the couple will have the same state rights as a married couple, including automatic rights such as hospital visitation and being able to make end-of-life decisions for each other.

Such disparities among states are common. In places such as Hawaii and Maryland, laws have evolved to be gay-friendlier, but in other areas, including Oklahoma and Virginia, things have moved backward.

In 1997, Hawaii's legislature passed a statute allowing couples to register as "reciprocal beneficiaries," entitling them to about 60 rights and responsibilities given to married couples. In Massachusetts gay married couples have the same rights in state matters as straight ones.

Last year in Virginia the general assembly banned civil unions and even contracts between same-sex couples if it appeared they gave each other the legal privileges of marriage.

The political climate may sway and shimmy even if laws aren't on the books. Companies may change policies on insurance benefits without fanfare or publicity. Even staying in one place requires constant vigilance as more and more states consider discriminatory laws to restrict the rights of gay-led families. Gay couples are left to do thorough research and should leave no question unasked before making life-changing decisions.

When Virginia passed its law last year, that rendered moot many contracts between gay partners, Barbara Kenny, 66, and Tibby Middleton, 67, knew it was time to leave their home state of more than 35 years.

For years the couple had numerous legal documents protecting them in case of sickness or death, but the law seemed to make many of them useless. "I said, 'Tib, let's go,' " Kenny says.

The couple, who have been together for 39 years, feared staying in a hostile state because Kenny has been diagnosed with a brain aneurysm, a condition that, though currently dormant, could worsen at any time. The prospect of that happening without legal protections in place frightened them.

The ramifications of not having legal protections for a family can be many. Middleton, for instance, has children and one grandchild. The family is close, and she enjoys spending time at a Virginia mountain cabin with her daughter and granddaughter. Could they be barred from a hospital room if Kenny were admitted? Could Kenny be barred from making an emergency medical decision for a grandchild that is officially Middleton's if she needed to? The new Virginia law seems to throw it all into question.

"To stay and do the kind of battle it would take is more than I'm willing to do," says Kenny. "To keep my blood pressure down I'm not going to be the poster child." They moved to nearby Maryland and are hoping for the best.

When David-Matthew Barnes, 34, and partner Nick Moreno, 27, moved from Sacramento to Atlanta with two teenagers for whom they were legal guardians, they knew little about what to expect. They knew they could be legal domestic partners in California, but that was not the case in Georgia. "It was a slap in the face, really," says Barnes, a professional writer.

Such quirky state disparities are one reason federal protections are so important, and a Supreme Court decision ruling for equal rights in marriage and parenting is the only real way to resolve the issue once and for all, says HRC's Evans.

The Christian Coalition of America has made no secret that its state chapters are working hard to get antigay measures on state ballots, a move the group says can help sway politically hungry congressmen into thinking the masses are antigay when public opinion and voter exit polls show otherwise.

Groups such as the coalition and Focus on the Family, Christian-based organizations that claim to put a priority on family life and protecting children, have devoted their resources to fighting measures that would give the most basic rights to countless children now and in the future.

Such groups seem to ignore the fact that 99% of counties in the United States have self-identified cohabiting same-sex couples, according to the 2000 census, and many of them already have children or will have children in the future. The results of many of the antigay measures on state ballots affect the children as much as anyone, making some of them legal orphans or robbing them of basic rights such as access to a parent's Social Security benefits should the parent die.

"Not to allow a child to receive Social Security benefits from a parent who has raised them their entire life and who has paid into the system is just so immoral," says HRC's Evans. Such rights would be bestowed automatically if gay parents were legally able to marry.

Fighting such an organized antigay effort and the inequalities that exist have fueled something some people never expected: anger that leads to action. Kirchgassner and Robertson, for instance, leave the Sunshine State with a renewed vigor to continue their fight. Even though with a civil union they will have legal access to many of the same benefits in the state as married couples, they are not ready to rest. "I'm angry. I'm going to be more politically active up there," Kirchgassner said. "I'm going to be more involved."

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